Opinion
COA23-205
11-07-2023
IN THE MATTER OF: K.P.W.
Erika Leigh Hamby, for Petitioner-Appellee Wilkes County Department of Social Services. Edward Eldred, for Respondent-Appellant Father. Michelle FormyDuval Lynch, for Guardian Ad Litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 5 September 2023.
Appeal by respondent-father from Order entered 18 November 2022 by Judge David V. Byrd in Wilkes County No. 18-JT-108 District Court.
Erika Leigh Hamby, for Petitioner-Appellee Wilkes County Department of Social Services.
Edward Eldred, for Respondent-Appellant Father.
Michelle FormyDuval Lynch, for Guardian Ad Litem.
THOMPSON, Judge
Respondent-father appeals from the district court's 18 November 2022 order terminating his parental rights to his minor child K.P.W.[ Respondent-father contends that the district court violated the statutory mandates under N.C. Gen. Stat. § 7B-1105 regarding preliminary hearings for unknown parents to his prejudice such that the order terminating his parental rights must be vacated. After careful consideration, we agree with respondent-father's arguments and, accordingly, we vacate the order terminating his parental rights to K.P.W.
Initials are used to protect the identity of the juvenile.
I. Factual Background and Procedural History
Respondent-father and K.P.W.'s biological mother[ never married but engaged in a romantic relationship for some period of time which resulted in the mother becoming pregnant with K.P.W. in 2014. At some point, the mother told respondentfather of the pregnancy and also stated that she planned to obtain an abortion. By the time of K.P.W.'s birth in July 2015, the relationship between the mother and respondent-father had ended and respondent-father was unaware that he had become the biological father of a child. The mother named another man as the father of K.P.W. on the child's birth certificate, thus establishing that individual as K.P.W.'s putative father.[ For several years following the end of their relationship, the mother did not have any contact with respondent-father.
The mother is not a party to this appeal.
Up until 1 October 2013, the placement of a father's name on a birth certificate established a "rebuttable presumption that [the named father] had established paternity judicially." See In re J.K.C., 218 N.C.App. 22, 39, 721 S.E.2d 264, 276 (2012), superseded by statute as recognized in Matter of A.L.S., 375 N.C. 708, 851 S.E.2d 22 (2020). Although the option for judicially established legitimation of children based upon the contents of the birth certificate had been ended prior to K.P.W.'s birth, during the early stages of the underlying matter, the man listed on the birth certificate was named in numerous court documents as the child's father. We refer to this person, who is not a party to this appeal, as K.P.W.'s putative father.
On 15 June 2018, the Wilkes County Department of Social Services (DSS) filed a neglect petition and obtained a non-secure custody order removing K.P.W. from the mother's care due to allegations involving domestic violence and substance abuse.[ The neglect petition named the man listed on K.P.W.'s birth certificate as the child's father and no questions regarding K.P.W.'s parentage were raised during that proceeding. Thereafter, an order adjudicating K.P.W. as a neglected juvenile was entered on 10 October 2018. At the first permanency planning review hearing in the matter held on 1 July 2019, DSS recommended termination of the parental rights of the mother and of K.P.W.'s putative father, due to their failure to make reasonable progress towards reunification, maintain employment, and submit to drug screens, among other concerns. The order entered at the conclusion of the review hearing relieved DSS from continuing reasonable efforts towards reunification, and ordered DSS to proceed in conformance with its recommendation for termination of parental rights to K.P.W.
Three of K.P.W.'s half-siblings were also removed from the home and eventually became the subjects of termination of parental rights petitions, but their circumstances are not pertinent to this appeal and are not further discussed herein.
For reasons not explained in the record on appeal, at the second permanency planning review hearing held on 30 September 2019, questions of paternity arose and the putative father of K.P.W. was ordered to submit to DNA[ testing. The district court also continued its previous orders from the first permanency planning review hearing and concluded the primary permanent plan for K.P.W. should remain adoption but changed the secondary plan from reunification to guardianship. In October 2019, DNA testing confirmed that the putative father of K.P.W. was not the child's biological father. As a result, on 26 November 2019 when DSS filed a termination of parental rights petition with regard to K.P.W., alleging statutory grounds of neglect pursuant to N.C. Gen. Stat. § 7B-1111(1) and abandonment pursuant to N.C. Gen. Stat. § 7B-1111(7), the petition listed the mother, the putative father, and "John Doe" as the respondent parents.
DNA is the commonly used abbreviation for deoxyribonucleic acid. See https://www.genome.gov/genetics-glossary/Deoxyribonucleic-Acid (last visited on Sept. 18, 2023).
On 24 January 2020, DSS filed notice for a preliminary hearing to determine the identity of the unknown parent "John Doe" as provided in N.C. Gen. Stat. § 7B-1105. Three days later, on 27 January 2020, the mother disclosed to DSS for the first time that she believed respondent-father to be the biological father of K.P.W. DSS immediately began the process of attempting to locate respondent-father for purposes of notice and to afford him the opportunity of DNA testing to confirm his parental status as to K.P.W.
The district court proceeded to hold a preliminary hearing pursuant to N.C. Gen. Stat. § 7B-1105 on 10 February 2020, during which the court heard evidence from DSS regarding the mother's disclosure that respondent-father was K.P.W.'s biological father. DSS requested leave from the court to amend the termination petition if it was determined that respondent-father was in fact the biological father of K.P.W. DSS also sought the district court's approval to serve notice by publication for "John Doe"-K.P.W.'s biological father-who was believed but not confirmed to be respondent-father. At the conclusion of the hearing, the district court entered an order granting both of the requests made by DSS.
DSS was eventually able to locate respondent-father, who was incarcerated at the time, and on 29 April 2020, DSS contacted him by telephone to discuss the possibility that he could be the biological father of K.P.W. During that telephone call, respondent-father informed DSS that the mother had previously told him that he was K.P.W.'s father, although the record does not reflect when that exchange might have occurred. Respondent-father explained that he and the mother had been in casual contact via Facebook since around June 2018, and after seeing photographs of the child and noticing K.P.W.'s resemblance to himself, respondent-father believed from that time that K.P.W. might be his child. Respondent-father did not at that point, however, attempt to establish a relationship with K.P.W. or take steps to confirm or legitimize his status as K.P.W.'s biological father. DSS offered to facilitate DNA testing for respondent-father, but due to COVID-19 restrictions, respondent-father's intermittent periods of incarceration, and his failure to keep at least one scheduled appointment for testing, it was not until February 2021 that DNA testing confirmed that respondent-father is K.P.W.'s biological father. On 22 February 2021, DSS informed respondent-father of the DNA results.
On 18 June 2021, another permanency planning hearing was held, but despite the confirmation of respondent-father as the biological father of K.P.W. several months earlier, respondent-father did not receive notice of nor did he attend the hearing. At the conclusion of that hearing, the district court appointed counsel to represent respondent-father and directed DSS to amend the termination petition to include respondent-father.
On 13 October 2021, DSS filed an amended petition for termination of parental rights to K.P.W., which named the mother and respondent-father as the respondent parents. Respondent-father was served with the summons and petition on or about 18 October 2021, and on 29 October 2021, respondent-father filed a pro se answer seeking, inter alia, the ability to visit K.P.W. and to permit his family "to be in [the child's] life." Following a permanency planning hearing in December 2021, the district court found as fact that respondent-father "did not know [K.P.W.] existed until [he was] approached to be DNA tested."
On 1 April 2022, the district court held a hearing on the termination petition. Respondent-father was present and testified. On 18 November 2022, the district court entered an order in which it determined the existence of both neglect and abandonment as grounds that would permit the termination of respondent-father's parental rights to K.P.W. and further concluded that termination of his parental rights was in K.P.W.'s best interest. The termination order included the following pertinent findings of fact concerning respondent-father:
36. [DSS] was able to reach [respondent-father] via phone on April 29, 2020 and discussed his potential paternity of [K.P.W.] at that time. [Respondent-father] acknowledged that [the mother] had told him[ ] that he was the father of the minor child.
37. On February 22, 2021, the Social Worker called [respondent-father] while he was at Piedmont Correctional, and spoke to him for approximately 70 minutes. At this time, she informed him that DNA had confirmed he was the minor child's father.
38. [Respondent-father] again confirmed he had felt sure she was his child, and asked [DSS] to send him pictures. [Respondent-father] also confirmed that he was aware of domestic violence in the home between [the mother] and her boyfriend.
39. [Respondent-father] put forth his mother, sisters, and brother as potential placements for [K.P.W.].
40. After learning that he was in fact [K.P.W.'s] father, he did not attempt to establish a bond with the child, or maintain contact with [DSS] to inquire as to her wellbeing.
41. [Respondent-father] did send two letters to the Social Worker to be sent to [K.P.W.]. One letter appeared to be addressed to another of [the mother]'s children, and the one that appeared to be for [K.P.W.] was addressed to [a similarly spelled name].
42. [Respondent-father] has been incarcerated in DAC and or county jail facilities for the majority of the time he has been known to [DSS]. When on occasion he was not incarcerated, it was difficult for the Social Worker to maintain contact with him.
43. [Respondent-father] had reason to believe he was [K.P.W.'s] father as early as 2018, but knew unequivocally that he was [K.P.W.'s] father in February 2021 when made aware of the DNA results.
44. [Respondent-father] was never offered a Family Services Case Plan to work toward reunification with
[K.P.W.], as he had never been identified to [DSS] as a potential parent until after [K.P.W.'s] plan had changed.
45. [Respondent-father] was aware of paternity even before results of DNA test, and undoubtedly knew after DNA test.
46. [Respondent-father] acknowledged that [K.P.W.'s] picture looked just like him.
47. [Respondent-father] did not exercise the modes of contact with [K.P.W.] that were available to him. There is evidence of one [or] possibly two letters to [K.P.W.].
48. [Respondent-father] neglected to take any action other than cooperating with the Social Worker and naming some potential placements.
Respondent-father timely appealed from the order terminating his parental rights to K.P.W.
II. Analysis
Respondent-father argues on appeal the order terminating his parental rights should be vacated because he was prejudiced by the district court's violations of the provisions of N.C. Gen. Stat. § 7B-1105 which mandate the procedures a district court must follow when a petition is filed to terminate the parental rights of an unknown parent. We agree.
A. Statutory mandate
Where a district court fails to comply with a statutory mandate and thereby prejudices a party, that party's right to appeal the error is automatically preserved for appellate review. In re K.N., 381 N.C. 823, 827, 874 S.E.2d 594, 598 (2022). This Court considers the issue of whether a district court has complied with relevant statutory mandates de novo, "us[ing] the trial court's record but review[ing] the evidence and law without deference to the trial court's rulings." In re K.S., 380 N.C. 60, 64, 868 S.E.2d 1, 4 (2022).
This state's Juvenile Code, found in Article 11 of Chapter 7B of the North Carolina General Statutes, governs termination of parental rights proceedings. See N.C. Gen. Stat. § 7B-1100 et seq. (2021). Section 7B-1105 sets forth the procedures that a district court must follow in termination proceedings if the identity of a parent is unknown and provides, initially:
If either the name or identity of any parent whose parental rights the petitioner seeks to terminate is not known to the petitioner, the court shall, within 10 days from the date of filing of the petition, or during the next term of court in the county where the petition is filed if there is no court in the county in that 10-day period, conduct a preliminary hearing to ascertain the name or identity of such parent.N.C. Gen. Stat. § 7B-1105(a) (2021). Following such a preliminary hearing, section 7B-1105 sets forth two possible next steps for a district court:
(b) The court may, in its discretion, inquire of any known parent of the juvenile concerning the identity of the unknown parent and may order the petitioner to conduct a diligent search for the parent. Should the court ascertain the name or identity of the parent, it shall enter a finding to that effect; and the parent shall be summoned to appear in accordance with G.S. 7B-1106.
(d) If the court is unable to ascertain the name or identity
of the unknown parent, the court shall order publication of notice of the termination proceeding and shall specifically order the place or places of publication and the contents of the notice which the court concludes is most likely to identify the juvenile to such unknown parent. The notice shall be published in a newspaper qualified for legal advertising in accordance with G.S. 1-597 and G.S. 1-598 and published in the counties directed by the court, once a week for three successive weeks ....Id. § 7B-1105 (emphases added).
Thus, the plain and unambiguous language of subsection (a) requires the district court to conduct a preliminary hearing to attempt to discover the identity of the unknown parent within the applicable time period-either "within 10 days from the date of filing of the petition, or during the next term of court in the county where the petition is filed if there is no court in the county in that 10-day period"-of the court's own accord and without any need for further action by any party. See In re M.I.W., 365 N.C. 374, 381 n.3, 722 S.E.2d 469, 475 n. 3 (2012) (contrasting N.C. G.S. § 7B-1105 with N.C. G.S. § 7B-907(e) because the latter statute "requires that the described action be taken by a party, not by the trial court"). The legislature has further mandated that if the respondent parent is identified at the hearing, said parent must be summoned, while if the respondent parent is not identified, the court must provide notice to the unknown parent by means of publication. N.C. G.S. § 7B-1105(b), (d). In any event, the district court must issue either the order required by subsection (b) or that required by subsection (d) "within 30 days from the date of the preliminary hearing unless the court shall determine that additional time for investigation is required." Id. § 7B-1105(e)[
These provisions of subsections (a), (b), and (d) are mandatory as indicated by the North Carolina General Assembly's decision to employ the term "shall." See, e.g., State v. House, 295 N.C. 189, 203, 244 S.E.2d 654, 662 (1978) (discussing differences between "mandatory" and "directory" statutory provisions and noting that the use of "shall" indicates a mandatory provision).
Here, the district court did not conduct a preliminary hearing on the original petition pursuant to section 7B-1105 until 10 February 2020, some seventy-six days after DSS filed the petition to terminate the parental rights to K.P.W. of the mother, the legal father, and "John Doe" on 26 November 2019. The timing of this preliminary hearing appears to fall well outside the time period required pursuant to N.C. G.S. § 7B-1105(a).[
The record on appeal does not indicate whether district court was held within 10 days of the filing of the petition, or if not, when the next term of district court occurred.
In addition, the district court neither summoned respondent-father in conformance with provisions of subsection (b) applicable where a previously unknown parent is identified, although the district court apparently ascertained respondent-father's identity as the probable biological father of K.P.W. at the 10 February 2020 preliminary hearing, nor ordered publication of notice on an unknown parent pursuant to N.C. G.S. § 7B-1105(d).[ The district court also failed to enter a separate preliminary hearing order in this matter but instead made findings of fact from the preliminary hearing in the order terminating parental rights filed 1,012 days after the preliminary hearing was conducted. In light of these circumstances, respondent-father asserts that the district court failed to comply with multiple provisions of N.C. G.S. § 7B-1105.
The mother first informed a DSS social worker that respondent-father was the biological father of K.P.W. on 27 January 2020, and that social worker shortly thereafter discovered that respondent-father was then incarcerated in Catawba County. When DSS provided this information to the district court at the hearing, the court gave DSS leave to amend the TPR petition "if [respondent-father] was determined to be the father of the minor child."
In response, DSS and the GAL contend that N.C. G.S. § 7B-1105 is not applicable in this matter because the amended petition for termination of parental rights to K.P.W., which was filed on 13 October 2021, named both the mother and respondent-father as the respondent parents, and respondent-father was served with the summons and amended petition on or about 18 October 2021. The filing of an amended termination petition and issuance of the new summons to respondent-father initiated a new termination proceeding with regard to him and discontinued the original termination proceeding as to "John Doe." See In re W.I.M., 374 N.C. 922, 926, 845 S.E.2d 77, 80 (2020) (first citing Lackey v. Cook, 40 N.C.App. 522, 526, 253 S.E.2d 335, 337 (1979) and then citing N.C. Gen. Stat. § 1A-1, Rule 4(e) (2019)). Because the amended petition identified respondent-father as the biological father of K.P.W., DSS and the GAL argue that no preliminary hearing to identify an unknown father under N.C. G.S. § 7B-1105 was appropriate, much less required. See In re A.N.S., 239 N.C.App. 46, 49-50, 767 S.E.2d 699, 702-03 (2015) (holding that the General Assembly "intended the preliminary hearing described in [Section 7B-1105] to apply only when the petition demonstrates that the petitioner is unaware of the name or identity of a parent, regardless of the respondent's answer") (internal quotation marks and citation omitted).
In our view, the position advocated by DSS and the GAL indicates a misperception of the purpose underlying section 7B-1105. When the original termination petition was filed, petitioner knew conclusively that the putative father was not the biological father of K.P.W. and such knowledge was reflected by the inclusion of "John Doe" as a respondent parent. This circumstance plainly triggered the application of N.C. Gen. Stat. § 7B-1105(a) in this case. If we were to hold that a district court could "cure" noncompliance with that statute's mandatory provisions simply by months later allowing the filing of an amended termination petition now naming a newly identified respondent parent, the General Assembly's directives in N.C. Gen. Stat. § 7B-1105 would be rendered largely meaningless. We reject this contention and thus hold that the district court here violated the statutory provisions in question.
B. Prejudice
We next turn to the question of whether respondent-father was prejudiced by the district court's failure to comply with N.C. Gen. Stat. § 7B-1105. See In re K.N., 381 N.C. at 827, 874 S.E.2d at 598; see also In re J.Z.M., 184 N.C.App. 474, 478, 646 S.E.2d 631, 634 (2007) (Steelman, J., dissenting), rev'd per curiam for the reasons stated in the dissenting opinion, 362 N.C. 167, 655 S.E.2d 832 (2008). As noted above, the district court found the existence of both abandonment and neglect as bases for the termination of respondent-father's parental rights.
1. Abandonment
The GAL urges this Court to hold that respondent-father cannot establish that he has been prejudiced by any alleged statutory noncompliance, given that he has challenged only one of the findings of fact supporting the district's court's determination that the ground of abandonment existed: that after learning that he was in fact K.P.W.'s father, respondent-father "did not attempt to establish a bond with the child or maintain contact with [DSS] to inquire as to her wellbeing." "Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal," In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58 (2019) (citations omitted), and this Court reviews an order terminating parental rights to determine whether the district court's findings of fact are supported by clear, cogent, and convincing evidence and, if so, whether the findings support the conclusions of law. In re K.N., 381 N.C. at 827, 874 S.E.2d at 598. Conclusions of law are reviewable de novo on appeal. Id.
For his part, respondent-father contends that
it is impossible for this Court to know how this case would be different had the trial court complied with the statute by summoning [respondent-father], as in [In re M.M., 200 N.C.App. 248, 684 S.E.2d 463 (2009)-another case involving an initially unknown father], four months after DSS filed the petition, not twenty-two months after DSS filed the petition; by publishing notice so that [respondent-father] or his family would have been aware of the proceeding; by assigning counsel to represent and protect
[respondent-father]'s rights in March 2020 instead of October 2021; or by ordering DSS to complete DNA testing instead of leaving DSS to its own devices.
As noted above, the district court here found the existence of the grounds of abandonment and neglect as bases for termination of respondent-father's parental rights. With regard to abandonment, our Supreme Court has stated:
A trial court may terminate a parent's parental rights when "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]" N.C. G.S. § 7B-1111(a)(7). "Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child." In re Young, 346 N.C. [244,] 251, 485 S.E.2d [612,] 617 [(1997)] (citation omitted). "Wilful [sic] intent is an integral part of abandonment and this is a question of fact to be determined from the evidence." Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). "[I]f a parent withholds [that parent's] presence, [ ] love, [ ] care, the opportunity to display filial affection, and willfully [sic] neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child." Id. at 501, 126 S.E.2d at 608.In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019) (alterations in original).
As revealed by the record, respondent-father was incarcerated for all but a few days during the course of the underlying proceeding. "[I]ncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.... Although a parent's options for showing affection while incarcerated are greatly limited, a parent will not be excused from showing interest in [the] child's welfare by whatever means available." Id. at 19-20, 832 S.E.2d at 695 (quoting In re D.E.M., 257 N.C.App. 618, 810 S.E.2d 375, 378 (2018) (citations and internal quotation marks omitted)).
For example, in In re C.B.C.,
the findings demonstrate[d] that in the six months preceding the filing of the termination petition, respondent made no effort to pursue a relationship with [the respondent's child,] Catherine. The trial court found that respondent did not send any cards or letters to Catherine, did not contact petitioners to inquire into Catherine's wellbeing, did not take any steps to modify the custody order or resume visitation after the trial court's denial of the first termination petition, and did not provide financial support for Catherine despite earning $600 per week from September 2017 until he was incarcerated in March 2018. The trial court also found that although respondent received five free cards per month while in custody, he only sent Catherine one card after being served with the termination petition.Id at 23, 832 S.E.2d at 697. The Supreme Court found that such factual findings demonstrated that the respondent "willfully withheld his love, care, and affection from Catherine and that his conduct during the determinative six-month period constituted willful abandonment." Id. (citing In re B.S.O., 234 N.C.App. 709, 711, 760 S.E.2d 59, 64 (2014) (affirming termination of the respondent-father's parental rights based on the ground of willful abandonment where, in the relevant six-month period, the respondent-father "made no effort" to remain in contact with the children or their caretakers and did not provide anything toward their support)).
Here, the relevant time period-the six months immediately preceding the filing of the amended petition for termination of parental rights-runs from 30 April 2021 to 31 October 2021. A significant number of the district court's findings of fact concerning respondent-father address his actions and knowledge outside the statutory timeframe, and while "the trial court may consider a parent's conduct outside the six-month window in evaluating a parent's credibility and intentions," In re D.M.O., 250 N.C.App. 570, 573, 794 S.E.2d 858, 861 (2016) (internal citations, quotation marks, and alterations omitted), they are not determinative in adjudicating willful abandonment under N.C. G.S. § 7B-1111(a)(7). In re C.B.C., 373 N.C. at 22, 832 S.E.2d at 697 (citing In re D.M.O., 250 N.C.App. at 573, 794 S.E.2d at 861).
The unchallenged findings of fact concerning respondent-father's actions during the relevant timeframe, the beginning of which nearly coincides with respondent-father's first learning for certain that K.P.W. was his biological child, are easily distinguishable from those presented in In re C.B.C. and other cases where the existence of the ground of abandonment was upheld on appeal. For example, here the district court found that respondent-father requested pictures of the child, sent the district court a hand-written pro se letter immediately after being served with the amended petition in which he begged that his parental rights not be terminated, sent the child at least one letter, named multiple family members as potential placements for K.P.W., cooperated with DSS including by submitting to DNA testing even in the absence of a court order to do so, and participated in the termination hearing.
Furthermore, although the district court here found as fact that respondentfather "did not exercise the modes of contact with the child that were available to him," as in In re D.E.M., 257 N.C.App. at 621, 810 S.E.2d at 379, the district "court's findings . . . do not address, in light of his incarceration, what other efforts [the parent] could have been expected to make to contact [the child's caretakers] and the juvenile," and as in In re D.M.O., 250 N.C.App. at 575, 794 S.E.2d at 863, the district court here "failed to make findings that any of [this incarcerated respondent's] conduct was willful or manifested a willful intent to abandon" his child.
Such omissions by the district court are problematic because "[w]il[l]ful intent is an integral part of abandonment and this is a question of fact to be determined from the evidence." In re C.B.C., 373 N.C. at 19, 832 S.E.2d at 695 (citation and internal quotation marks omitted); see also In re D.M.O., 250 N.C.App. at 575, 794 S.E.2d at 862-63 (holding that "the circumstances attendant to a parent's incarceration are relevant when determining whether a parent willfully abandoned his or her child, and this Court has repeatedly acknowledged that the opportunities of an incarcerated parent to show affection for and associate with a child are limited"). "Furthermore, our cases have consistently recognized that the finding of willful intent for abandonment under N.C. Gen. Stat. § 7B-1111(a)(7) is something greater than that of the willful intent for leaving a child in foster care without making reasonable progress under N.C. Gen. Stat. § 7B-1111(a)(2)." In re D.M.O., 250 N.C.App. at 576, 794 S.E.2d at 863. For this reason, this Court carefully examines termination of parental rights orders for factual findings regarding willfulness when considering whether a determination of the existence of the ground of abandonment is correct. See, e.g., In re D.J.D., 171 N.C.App. 230, 615 S.E.2d 26 (2005) and In re B.S.O., supra.
In sum, termination of parental rights based on the ground of abandonment requires factual findings that "show more than a failure of the parent to live up to [his or her] obligations as a parent in an appropriate fashion." In re S.R.G., 195 N.C.App. 79, 87, 671 S.E.2d 47, 53 (2009). Rather, "[a]bandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child." In re Adoption of Searle, 82 N.C.App. 273, 275, 346 S.E.2d 511, 514 (1986). The district court's order here simply does not meet that standard.
2. Neglect
As for neglect as a ground for termination of parental rights,
[a]ccording to N.C. G.S. § 7B-1111(a)(1), a . . . judge may terminate a parent's parental rights in a child in the event that it finds that the parent has neglected the child in such a way that the child has become a neglected juvenile as that term is defined in N.C. G.S. § 7B-101. A neglected juvenile is "[a]ny juvenile less than 18 years of age . . . whose parent . . . does not provide proper care, supervision, or discipline" or "who lives in an environment injurious to the juvenile's welfare[.]" N.C. G.S. § 7B-101(15) (2019).In re J.S., 377 N.C. 73, 78, 855 S.E.2d 487, 491 (2021).
Generally, "[t]ermination of parental rights based upon this statutory ground requires a showing of neglect at the time of the termination hearing." In re D.L.W., 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard, 311 N.C. 708, 713-15, 319 S.E.2d 227, 231-32 (1984)). However, "if the child has been separated from the parent for a long period of time, there must be a showing of past neglect and a likelihood of future neglect by the parent," id. at 843, 788 S.E.2d at 167, and the same analysis applies where, as here, the juvenile was never in the care of respondent-father and where at the time K.P.W. was adjudicated a neglected juvenile, respondent-father did not know for certain that K.P.W. was his child.
Because "termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist," a district "court must [ ] consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." In re Ballard, 311 N.C. at 714, 715, 319 S.E.2d at 231-32 (citation omitted). Ultimately, the question for the court hearing a termination petition concerns "the fitness of the parent to care for the child at the time of the termination proceeding." Id. at 715, 319 S.E.2d at 232 (emphasis in original).
As with the ground of abandonment, a "respondent's incarceration, by itself, cannot serve as clear, cogent, and convincing evidence of neglect. Instead, the extent to which a parent's incarceration . . . support[s] a finding of neglect depends upon an analysis of the relevant facts and circumstances, including the length of the parent's incarceration." In re K.N., 373 N.C. at 282-83, 837 S.E.2d at 867 (citation and internal quotation marks omitted). A determination of neglect as a basis for termination of parental rights may be upheld, for example, where a district court's
findings of fact demonstrate that it properly considered
respondent-father's incarceration as a relevant factor, while also making other findings which showed a likelihood of future neglect of the children by him.... [such as] facts which chronicled respondent-father's behavior during the entire history of the case, encompassing both the period of time when he was incarcerated as well as the span of time when he was released.In re B.E., 381 N.C. 726, 738, 874 S.E.2d 524, 533 (2022). In contrast, in In re K.N., the district court's determination of neglect by an incarcerated parent was vacated where the termination order did not include "an analysis of the relevant facts and circumstances, including the length of the parent's incarceration." 373 N.C. at 283, 837 S.E.2d at 867. The termination order here lacks any findings of fact regarding the role of respondent-father's incarceration or any other pertinent circumstances which "demonstrate that [the district court] properly considered respondent-father's incarceration as a relevant factor, while also making other findings which showed a likelihood of future neglect." See In re B.E., 381 N.C. at 738, 874 S.E.2d at 533.
III. Conclusion
Had the district court complied with the provisions of N.C. G.S. § 7B-1105, it likely would have identified respondent-father in a more timely fashion, thus enabling him to have the benefit of counsel and begin preparing his case earlier. For that reason, we conclude that respondent-father was prejudiced by the district court's failure to follow the statutory mandates in question, and accordingly, we vacate the district court's order terminating respondent-father's parental rights to K.P.W.
VACATED.
Judge MURPHY concurs in Part II-A and concurs in result only as to Part II- B.
Judge DILLON dissents by separate opinion.
Report per Rule 30(e).
DILLON, Judge, dissenting.
My vote is to affirm the order of the trial court terminating the parental rights of Father for the reasoning below. Accordingly, I respectfully dissent.
The majority vacates the order, essentially because the trial court did not follow the statutory mandate of N.C. Gen. Stat. § 7B-1105 concerning DSS's original petition filed in November 2019 to terminate the parental rights of Mother and Father, whose identity had not yet been determined. However, because DSS later filed and served on Father an amended petition in October 2021 after confirming through DNA testing that Father was the child's father, any deficiencies in the proceedings concerning the original 2019 petition are not relevant here. See, e.g., In re W.I.M., 374 N.C. 922, 926, 845 S.E.2d 77, 80 (2020) (holding that the filing and serving of an amended petition with a new summons is essentially the initiation "of a new termination proceeding."). Further, Father was not prejudiced concerning the 2019 petition, as he was aware during this time that he was the child's father, but did nothing to establish any relationship with the child or to assert his parental rights.
The unchallenged findings in the November 2022 termination order, entered based on the amended October 2021 termination petition, show as follows:
In 2015, the child was born, shortly after Father had a sexual relationship with Mother.
In 2018, the child was placed into custody with DSS. At the time DSS did not know Father was the child's father. However, that same year, Mother had contacted Father through social media, informing Father that he was the child's father and sharing pictures of the child with Father. At this time, based on Mother's correspondence and on his belief that the child looked like him, Father was "relatively sure" that he was, in fact, the father of the child. However, throughout 2018, 2019, and 2020, Father made no effort to reach out to the child; he did not seek to develop a relationship with the child; he did not seek to determine definitively that he was the child's Father; and he did not otherwise seek any legal determination concerning his parental rights. During much of this time, he was aware of domestic violence occurring in the home where the child lived with Mother, but he made no effort to improve the welfare of his child in any way.
In 2020, DSS first learned from Mother that Father was possibly the child's father. When contacted by DSS, Father admitted Mother had told him previously that he was the child's father and that he believed himself to be the father.
In 2021, DSS located Father and had him undergo a DNA test, which confirmed him to be the child's father. Father was notified of the results, which confirmed what he had believed for three years.
Father has not attempted to establish any type of bond with the child except that he sent a letter to DSS addressed to the child. He did not otherwise ever inquire with DSS as to his child's well-being. The only action he took concerning the child was to provide the name of four relatives as potential placement options. Father has never met the child. There is no bond between Father and the child.
In October 2021, eight months after DNA testing confirmed Father to be the child's father, DSS filed and served the amended petition seeking the termination of Father's parental rights to the child.
For much of 2021 and 2022, Father was incarcerated. However, for some of the time, Father was not incarcerated, yet never made any attempt to meet his child or inquire about her well-being.
Based on these and the other findings, the trial court adjudicated the child as neglected and willfully abandoned by Father.
The trial court also made findings regarding the bond that the child (who is now eight years old) has made with the family where she has been living. Based on these and the other findings in the order, the trial court determined that it would be in the best interest of the child that the parental rights of Father be terminated.
In sum, the trial court had jurisdiction over Father based on the filing and service of the amended petition in October 2021. The trial court's findings, which show Father's disinterest towards the child over the course of four years (from 2018, when he first came to believe he was the child's father to 2022, when the trial court entered its order) and its other findings support the trial court's order terminating Father's parental rights, notwithstanding any errors concerning the trial court's handling of the original 2019 petition filed prior to DSS or the court knowing that Father was the child's father.